Comment by JumpCrisscross | Hacker News Reader

Comment by JumpCrisscross | Hacker News Reader

> When the IRS conducts an investigation for the purpose of “determining the liability” of a taxpayer...it must provide notice...But once the Service has reached the stage of “collecting any such liability” ...which is a distinct activity—notice may not be required...

TL; DR the IRS has to provide notice if investigating, but not collecting.

The IRS found Mr. Polselli liable for taxes. It subpoenaed his law firm for "cancelled checks, wire transfer/credit documents, and all other instruments used by Mr. Polselli to pay the firm." They refused, so the IRS subpoenaed the law firm's banks for the same. They co-operated and let the law firm know. (The IRS was investigating whether "money from [Poselli's LLC] was used to pay Mr. Polselli’s account at [the law firm], or to pay others through [the law firm].")

This seems reasonable. You're already on notice they're collecting. The subpoenas are targeted and subject to "a test turning on reasonableness." And there is no gag order.

Note: I am not a lawyer. Don’t take legal advice from internet comments.

I think the TLDR is a little more than that. Importantly, it's really not just about notice, it's perhaps more about being able to quash a summons. That is, the rules state that you can only file a motion to quash a summons in response to a notice. With no notice, you have no standing to quash.

The law was always clear that for a collection action, the IRS doesn't need to provide notice if the records they are targeting in a summons are for an account the delinquent taxpayer owns (or more specifically "has a legal interest in"). In this case, 3rd parties were arguing that the IRS had to give notice because Mr. Poselli didn't have a legal interest in the account records that were the target of the summons. Supreme Court basically said (unanimously) that's a BS reading of the law.

Legal isn't my forte, and I'm not a lawyer either, but it seems like overreach to me.

Specifically, say the circumstance involves someone else paying his legal fees. They are going after him for collecting, so they are already done investigating, he has an account with the law firm, but the checks that pay that account may not necessarily be paid by him.

So they'll be going after whoever helped him as though they were him. Granted its a bit of a leap and I'm not read in on the details of this particular case but it seems like this is a end-run shortcut to get around providing notice, or quashing overreach towards whoever might choose to help someone who owes outstanding taxes (for whatever reason, i.e. family?).

They'll simply make a claim against the account that paid for him even if he has no interest in that account, and it can't be quashed because no notice, and no standing without notice. That's a pretty broad overreach.

How does that not violate attorney client privilege?

Attorney-client privilege applies to communication for the purpose of obtaining legal advice and it typically excludes anything already disclosed to a third party, like the bank in this case.

Aren’t you disclosing your emails to third parties by using something like Gmail?

Yes, you are.

That's a good argument for using PGP/GPG/some other secure communication protocol.

That leaks the subject line (and other metadata), so I'd hardly call PGP over Email a secure communication protocol. You have to do something like use random UUIDs as subjects so you can track conversations without leaking what they're about. It's pretty good privacy for the message body, with pretty shit usability if you want security.

Of course you are, and of course Gmail sends the fed everything they asked for.

There was one email provider that didn't, remember what happened to it?

They had to shut down after being bankrupted by USG?

This seems to be much more about getting the fact of "this is the account he's paying you from" vs a privileged solicitation of legal advice.

What if you were to encode a message to your lawyer via your payments. Would that make it privileged? To me, a private transaction between parties subject to confidential privilege should also be subject to privilege.

In your world, wouldn't every tax cheat just conceal money by routing it through their law firm? Then the government can never find out how much money you have because it would be illegal to subpoena the firm, right?

(that world exists right now, and not really for tax concealment but that possibility comes with it, iykyk and you're about to know)

I don’t believe attorney client privilege applies if the lawyer is actively helping break the law.

The presence of a non-lawyer, non-client in a conversation makes it non-privileged. That is, if someone who is not privileged is part of the talk then it can't have privilege. Is your bank also your lawyer or a client of your lawyer? If not, then the presence of the third party in the transaction kills your privilege claim.

And having your bank share your lawyer with you might potentially open up conflict of interest questions, since your legal rights and your banks might diverge.

In-house council for a company get away with this (for internal communications) because they are lawyers for the company (right up until your interests diverge from that of the company, at which point you really want your own lawyer), but for your bank this stops being true.

Basically, you are thinking about law like an engineer, not a lawyer.

Someone else asked this upstream, but don’t you “share” your privileged communications with your (and your lawyer’s) email provider when corresponding without E2E encryption?

A third party can be necessary to facilitate the communication between the client and the attorney. A clearer example was if you needed an interpreter to speak to your lawyer - surely that conversation remains privileged and the third party in the room cannot disclose what was learned?

> surely that conversation remains privileged and the third party in the room cannot disclose what was learned?

Of course.

The technical "gotchas" people are coming up with here do not stand in the real world

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